Ex Parte Jorge A. Garcia

Citation: Not availableDocket: 04-14-00809-CR

Court: Court of Appeals of Texas; April 7, 2015; Texas; State Appellate Court

Original Court Document: View Document

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The document pertains to the appeal of George Garcia in case number 04-14-00809-CR, filed in the Fourth Court of Appeals in San Antonio, Texas. The appeal originates from the 144th District Court of Bexar County, presided over by Judge Andrew W. Carruthers. Richard B. Dulany, Jr., an appellate attorney from the Bexar County Public Defender’s Office, represents Garcia. 

The excerpt includes specific details about the identity of the parties involved, including the appellant, appellant's attorneys, state attorneys, and trial court judges for various hearings. It outlines the structure of the brief, which includes sections such as the identity of parties and counsel, a table of contents, a statement of the case, summaries of facts and arguments, and a conclusion.

Dulany asserts that after a thorough review of the record and relevant law, the appeal lacks merit and is deemed frivolous, referencing the Anders v. California standard. The document also contains administrative elements like a certificate of compliance and a certificate of service, alongside references to an appendix.

The document outlines a legal case involving Appellant George Garcia, who is appealing the denial of his motion to withdraw a no-contest plea entered on November 3, 2000, for possession of cocaine, a State Jail felony. The plea was allegedly made involuntarily due to ineffective counsel, specifically the failure to inform him of immigration consequences. 

The procedural history reveals that Garcia waived his right to indictment and consented to being charged by information, which stated the offense occurred on June 17, 2000. Following his plea, the trial court deferred adjudication and imposed a two-year community supervision period starting December 7, 2000. However, Garcia's probation was terminated unsatisfactorily on December 17, 2002, due to his deportation, which occurred on February 16, 2001, and because he had unpaid fines and fees totaling $1,812.25.

The document includes a Table of Authorities citing numerous cases and statutes relevant to the legal arguments presented, alongside a note on record references for the reporter's and clerk's records associated with the hearing on the writ of habeas corpus. Furthermore, it provides a Certificate of Compliance detailing the word count of the document in accordance with Texas appellate rules.

On July 25, 2014, George Garcia, the Appellant, filed an application for a writ of habeas corpus to withdraw his no-contest plea, claiming ineffective assistance from his plea counsel for not informing him that the plea would lead to deportation. The application was submitted under Article 11.072 of the Texas Code of Criminal Procedure and referred to a criminal law magistrate. An evidentiary hearing took place on October 23, 2014, but the request for relief was denied. The Appellant filed a timely notice of appeal on November 20, 2014, and the Bexar County Public Defender’s Office was appointed for the appeal on February 11, 2015. The trial court later issued written Findings of Fact and Conclusions of Law.

The court-appointed attorney reviewed the record and concluded that the appeal lacked merit, indicating no reversible errors or viable issues for review. The case background reveals that over fourteen years prior, on November 3, 2000, the Appellant entered a no-contest plea for possession of cocaine, with the plea paperwork acknowledging potential deportation consequences. The trial court deferred adjudication and imposed a two-year community supervision term, which included a condition mandating the Appellant to leave the U.S. voluntarily or face deportation. The Appellant was deported on February 16, 2001, and his community supervision was terminated unsatisfactorily due to this deportation and unpaid fines.

In his habeas corpus application, the Appellant claimed his attorney misled him into believing his plea would not affect his immigration status, asserting his plea was involuntary due to ineffective assistance. However, he acknowledged that at sentencing, the trial judge warned him about the likelihood of deportation, and he was taken into INS custody immediately after sentencing.

The writ application was assigned to Criminal Law Magistrate Andrew W. Carruthers for an evidentiary hearing held on October 23, 2014. Laura Ramirez, the Appellant’s ex-wife, testified, revealing her surprise at Appellant's incarceration following the December 7, 2000 sentencing, believing he had a deal for probation. She asserted that Appellant was unaware of his impending deportation and would have arranged for their children’s care had he known. Ramirez claimed Appellant's plea attorney assured him there would be no immigration issues, but later realized the consequences only after consulting an immigration attorney post-deportation. During cross-examination, she admitted to not communicating with Appellant’s attorney and had no knowledge of what was conveyed to him during their meetings.

Appellant George Garcia also testified through an interpreter, stating he hired attorney Carlos Lopez for his drug possession case in 2000 and expressed concern about deportation. He recalled Lopez's vague assurance that “everything was going to be fine.” At the sentencing, Appellant asked about immigration issues again, receiving an uncertain response from Lopez. He recounted being informed by the judge that he had 24 hours to leave the U.S. and was arrested by immigration officers shortly after. Appellant claimed he was unaware of his right to a jury trial and would have contested the charges had he understood the consequences of his no-contest plea. He expressed limited proficiency in English and did not recall the judge’s admonitions before his plea, stating the courtroom proceedings felt rushed. He affirmed comprehension of the translations provided but insisted he was not informed of the option for a jury trial, claiming he would have chosen to go to trial had he known.

Appellant claimed that the judge informed him multiple times he had to leave the U.S. within 24 hours before entering his plea, which he did based on his attorney's assurance of receiving probation. The trial court acknowledged the written admonishments in the court’s file, particularly noting that Appellant was warned about potential deportation due to his plea and that he signed these admonishments. Appellant’s post-conviction counsel argued that his plea counsel was ineffective for not informing him of the consequences of his plea, but the prosecutor contended that Appellant was adequately advised by the judge. The trial court denied Appellant's claims, stating he had the burden to prove his allegations but failed to do so. It confirmed that Appellant was properly admonished under Article 26.13 and that his conviction was final before the Padilla decision, which is not retroactive. Consequently, the court found no error that would render Appellant's plea involuntary. Appellant has the right to appeal and has filed a timely notice of appeal. The appellate counsel concluded that there were no reversible errors and deemed the appeal meritless and frivolous, reiterating that Appellant did not demonstrate that his plea was involuntary.

Appellant's writ application was filed under Article 11.072 of the Texas Code of Criminal Procedure, which governs habeas corpus cases for individuals on community supervision. To succeed, the applicant must demonstrate entitlement to relief by a preponderance of the evidence, and the trial court's denial of relief is reviewed for abuse of discretion. The trial judge serves as the sole fact-finder, with the appellate court applying a highly deferential standard of review regarding the trial court's factual findings, particularly those involving credibility.

Appellant asserts a Padilla-type claim, arguing that his plea attorney failed to inform him that his no-contest plea would result in deportation. He contends that he was misled into believing his plea would not affect his immigration status, leading to his unawareness of the consequences until he was taken into INS custody post-sentencing. However, the legal precedent set in Padilla v. Kentucky, which requires attorneys to advise clients of deportation risks, does not apply retroactively. Appellant's plea occurred in 2000, prior to the March 31, 2010, ruling in Chaidez v. United States, which established that Padilla announced a new rule. Consequently, the Texas Court of Criminal Appeals has determined that defendants whose cases concluded before Padilla cannot invoke its protections, thereby negating Appellant's assertion of ineffective assistance of counsel based on Padilla.

Under pre-Padilla law, the Sixth Amendment's guarantee of effective assistance of counsel does not cover collateral consequences of prosecution, such as immigration repercussions from a guilty plea. The Texas Court of Criminal Appeals has established that immigration consequences are considered collateral and thus do not support claims of ineffective assistance. Consequently, a guilty plea remains valid even if the defendant's counsel provided inadequate advice regarding immigration issues. In this case, the trial court affirmed that the appellant was informed in writing about potential deportation linked to his no-contest plea and acknowledged this warning at sentencing, indicating that the plea was not involuntary despite any deficiencies in counsel's advice.

Additionally, the appellant claimed ineffective assistance for not negotiating a better plea and failing to mitigate harm. However, these allegations lack record support. The standard for assessing ineffective assistance, based on Strickland v. Washington, requires demonstrating that counsel's performance fell below an acceptable standard and that this deficiency likely affected the outcome. This assessment considers the overall representation rather than isolated actions and is based on the circumstances at the time of the trial. Rarely does an appellate record provide enough insight to evaluate ineffective assistance claims. To prove prejudice, a defendant must show a reasonable probability that the outcome would have been different without the attorney's errors.

Appellant's claim of ineffective assistance of counsel is based on the assertion that his trial attorney should not have permitted him to plead no contest, as it exposed him to deportation. The appellate court finds this argument unmeritorious, emphasizing that it will not second-guess trial counsel's strategic decisions and that there is a strong presumption that counsel's actions fall within a reasonable range of professional assistance. The absence of testimony or affidavits from plea counsel limits Appellant's ability to challenge the presumption of sound trial strategy. The plea agreement ultimately resulted in deferred-adjudication community supervision rather than incarceration, and deportation would have been a consequence regardless. Consequently, the record does not indicate that counsel's performance was objectively unreasonable, making it unnecessary to analyze the second prong of the Strickland test. After reviewing the record, counsel concludes that the appeal lacks merit and is frivolous. Counsel has provided Appellant with copies of relevant documents and informed him of his rights regarding the appeal and potential pro se filing. Counsel requests permission to withdraw from representation and seeks any other appropriate relief.

A Certificate of Service certifies the electronic delivery of the Appellant’s Brief In Support of Motion to Withdraw to the Bexar County District Attorney’s Office on April 7, 2015. Additionally, a true copy of the brief, counsel’s motion to withdraw, a letter outlining Appellant's right to file a pro se brief, and a motion for pro se access to the appellate record were sent to George Garcia via certified mail on May 7, 2015. 

The letter addressed to George Garcia informs him of the Bexar County Public Defender’s Office's appointment to represent him in his appeal regarding the denial of habeas corpus relief. After reviewing the appellate record, it is stated that no reversible errors were found, necessitating the filing of a Motion to Withdraw. The letter advises Garcia of his right to independently review the appellate record and file a pro se brief if he identifies any errors. Instructions are provided for completing and returning the Motion for Pro Se Access to the Appellate Record to the Fourth Court of Appeals within ten days. 

The letter concludes by stating that, although the public defender has filed a motion to withdraw, he remains available for any questions Garcia may have, and further information regarding the filing of a pro se petition for discretionary review will follow after the Court of Appeals issues its opinion. Enclosures include copies of the brief, the motion to withdraw, and the motion for pro se access.

Appellant George Garcia has filed a motion requesting pro se access to the appellate record in the Fourth Court of Appeals of Texas. His appointed counsel has submitted a motion to withdraw and an Anders brief, which allows for the Appellant to review the record to prepare his own response. Garcia seeks free access to both the clerk's record and the reporter's record, citing Kelly v. State as precedent. Additionally, he requests a 30-day extension to file his pro se brief. The motion is submitted to the Fourth Court of Appeals and was mailed on an unspecified date in 2015. Garcia respectfully requests that the Court grant his motion for access to the appellate record.